PolySciFi Blog

Tuesday, July 12, 2005


Why I Want an Originalist for the Supreme Court

Various people have called for a moderate/centrist justice; others have called for a dyed in the wool conservative justice (and I imagine others want a liberal justice, but realize that's beyond hope).

But in my mind, labels like "Moderate", "Conservative", and "Liberal" technically shouldn't matter.

What I want is an Originalist, specifically, a jurist who interprets the law/Constitution as it was intended at the time of its writing.

I desire an Originalist for several reasons:

1. A lack of an Originalist philosophy makes us a pure common law society and not a Constitutional society. After all, if the any later day meaning can be read into the Constitution, then the Constitution itself has no value and the law of the land is whatever the Court says it is.

Theoretically, a living Constitutionalist could read the First Ammendment as "KFC must give Jody a free bucket of chicken every Monday?" Less hyperbolically, living Constitutionalists did read the 5th ammendment's takings clause "public use" to mean whatever the government wants it to mean.

2. It makes the legal system straight forward.

Really, I have no idea what laws will be ruled Constitutional for what reasons anymore. From my point of view, the government has been run by the whims of 7 men and 2 women over the last decade.

Seriously, who saw McCain-Feingold being held up? Not the President, who signed the bill even though he thought the bill was unConstitutional. (To me, that's an impeachable offense - failing to uphold the Constitution - and it rather pissed me off at the time. But if that's the grounds I'm going to use for impeachment, virtually all 'dem bums are going to be thrown out.) To this day, I don't understand how the Court held it up in light of either the plain text of the First Amendment or Buckley. 1

3. It solves a lot of bad outcomes. McCain, Raich, and Kelo come to mind.

4. The current living Constitution approach results in a world of contradictions.

For example, suppose the feds pass a law outlawing prostitution. By Raich they're allowed to as it's a regulation of interstate trade. By Lawerence, they're not because it's an activity engaged in between two consenting adults.

Constitutionally, both were bad decisions as the regulation of interpersonal activities is a power reserved to the states by virtue of being a power not formally delegated to the feds.

5. Any bad outcomes that may be created by a bad outcome under an Originalist doctrine have a clear path to being fixed - either legislatively or by an ammendment.

Consider the advice of Thomas in Lawerence (who I consider the best example of an Originalist on the Court today) : 2

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1. [emphasis added]

In turn, consider what recourse the people have in Kelo. Passing an ammendment that says "public use means public use for real this time"? How long before that too is interpreted away? Passing state laws? Under a living Constitution, state laws are no guarantee either. They can just as easily be read in a different and apparently opposite manner.

What an Originalist Means Politically
Theoretically, an Originalist could be of any political stripe and still be an Originalist, though the most prominent Originalist on the court today is also a Conservative and I haven't seen any Liberal Originalist jurisprudence. So perhaps, in the short term, I have to look towards Conservatives (perhaps Luttig, but I'm really taking people's word on his or any nominee's Originalist inclinations).

So I guess I'm stuck looking for a Conservative for the Court. However, if I can be convinced that a centrist or a Liberal is also an Originalist, then I would prefer a Moderate/Liberal Originalist over an Living Constitution Conservative any day of the week.

And here's one last reason for me to support an originalist.

An Originalist philosophy effectively removes politics from the bench as an Originalist does no legislating by definition. Without legislation, politics is moot. So if we could get back to an Originalist mentality, the judicial nomination process shouldn't be so fractious.

In the comments, Matt raises a traditional critique of Originalism that I should've addressed in the original post.

If I may paraphrase/infer, the critique is

"Civil rights reforms of the 50s/60s were a very good result which could not have been enabled via Originalism and were too important to be left to the slower amendment process."

(This blockquote is not the text of the original comment. I'm merely using the conceit so I can have a specific argument to respond to. If it's an incorrect characterization, leave a comment with a correct characterization [Matt or anyone else] and I'll post a second update.)

I'm further refining my own phrasing of the critique as "an Originalist would not have ruled for Brown."

The Fourteenth and Fifteenth amendments were intended to provide equality before the government (of the races, but actually not gender - that took the 19th amendment). To present the relevant Court cases only on their buzz phrases, this is why Plessy v Ferguson ruled that "separate but equal" is ok, but Brown ruled that separate is "inherently unequal".

The difference between the rulings is a different finding of fact. In theory, separate can be equal. In practice, it almost never is(see Sweatt and McLaurin). Accordingly, an originalist would find that segregation of the races can not provide equality before the government and would use the very same phrase that separate is "inherently unequal".

Now the Brown decision does note that public education was not specifically addressed by authors of the 14th amendment (public education was neither mandatory nor integrated at the time). However, the principle was clearly laid out (equality of the races before the government) and equal treatment of the races in public education is an example of an unadressed specific instance of that principle. For an Originalist, the same finding of fact as Warren used (separate is unequal) is enough to show that the specific instance of segragation of schools violated the14th amendment's principle of racial equality before the government.

I think if I could actually be guaranteed a free bucket of KFC every Monday, I might have to reconsider my position. As long as the skins were included, of course. A bucket of skinless KFC chicken would obviously be a deal breaker.

1. To me, a much better campaign finance reform would've been using daylight as a sterilizer, that is, requiring all campaign contributions to be public domain.

2. I imagine there will be a question as to how I support Thomas's opinion but am against gay marriage. In my understanding of how legal marriage works, a marriage is a contract between man, woman, and society to protect/bless that union of husband and wife. (The societal protection/blessing part is why people other than the bride and groom attend the ceremony.)

My issue is homosexuality is a sin (see Romans 1:26-28, and that whole incident with Sodom) so I can't approve of it. As a member of society, I can't/won't impart my blessing/protection on something I find sinful which gay marriage implicitly requires. The homosexual act, however, I can tolerate as it doesn't place any requirements on me to further the action.

I am, however, amenable to the solution of getting government out of the marriage business all together.


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